Archer et al. v. City of New York is a federal class action lawsuit against New York City’s Administration for Children’s Services (ACS), challenging ACS’s widespread and racially discriminatory practice of abusing its “emergency” powers to remove children from their families without due process or court review. The suit alleges that ACS routinely uses its emergency removal powers – meant only for the rare situation when there is not enough time to seek a court order – to bypass a legal process and take children from their families when there is time to seek a court order and no true emergency. This illegal Emergency Removal Policy violates families’ fundamental right to family integrity and  causes deep and lasting harm, especially to Black and Latino families who are almost the exclusive target of this ACS practice. It is brought on behalf of several parents and children as a class action, on behalf of all families subject to this Emergency Removal Policy.

Every year, 50 percent of the over 1000 family removals ACS undertakes happen on a purportedly emergency basis and without a court order. Over 90 percent of children who are subject to emergency removals are Black or Latino. The named, pseudonymous plaintiffs in the case, Denise Archer and her three children, Jasmine, Jeremiah, and Daevon, and Danielle Lorimer, and her five children, Zoe, Yolanda, Xena, Willow, and Kayden, represent the thousands of primarily Black and Latino families in New York City who have been or will be subject to the illegal Emergency Removal Policy. The named plaintiffs represent a class of parents and a class of children, as equal protection subclasses. This is the first suit of its kind, representing  parents and children together.

The suit alleges that the  Emergency Removal Policy violates children’s Fourth Amendment right to be free from unreasonable seizures, parents’ and children’s Fourteenth Amendment Substantive Due Process rights to family integrity, and parents’ and children’s Fourteenth Amendment Procedural Due Process rights to a court hearing prior to a removal. It also documents the overwhelmingly racialized nature of emergency removals and challenges the policy as a violation of the parents’ and children’s Fourteenth Amendment rights to Equal Protection under the law.

Unjust separations of Black and Latino families have a deeply rooted historical legacy, from the forced family separation that was essential to the maintenance of chattel slavery, to the Native American “boarding schools” as a military tactic of forced assimilation, to the forced separation of migrant families at the U.S.-Mexico border.  In another family separation case before the Second Circuit Court of Appeals, the Center for Constitutional Rights filed an amicus brief detailing the historical roots of family separation of Black families from its origins in the practice of slavery in this country, and into the modern era where provision of public benefits to nonwhite families was conditioned on family surveillance and where the war on drugs likewise targeted Black families society deemed simply less worthy of family integrity. Today, Black and Latino families experience the brunt of the family policing system at staggering rates: ACS reports that it is 8.3 times more likely to investigate Black children, and 6.7 times more likely to investigate Hispanic children, than white children, and ACS sends Black children into foster care at almost 16 times the rate of white children. ACS staff have described the agency as “predatory” and one “that specifically targets Black and Brown parents” and applies “a different level of scrutiny to them throughout their engagement with ACS.” 

The harms of the Emergency Removal Policy are devastating and do not keep children safer. Data show that when ACS was forced to decrease the number of emergency removals in response to COVID-19 restrictions, there was no increase in harm to children – a fact that even ACS has acknowledged. And yet, countless studies show that separating children from their families – even briefly – causes severe psychological damage. Children taken from their parents fare worse during placement and later in life than children who are involved with the system but allowed to stay safely at home, suggesting that it is the removal itself that causes these harmful outcomes. Among children separated from their families, PTSD rates are nearly twice that of veterans returning from combat. 

The Center for Constitutional Rights represents the class of parents and subclass of Black and Latino parents, along with the Family Justice Law Center (FJLC), City University of New York (CUNY) School of Law Family Defense Clinic, New York University (NYU) School of Law Family Defense Clinic, and Wilmer Cutler Pickering Hale and Dorr LLP. The children’s class and subclass are represented by the Legal Aid Society and Cleary Gottlieb Steen & Hamilton LLP.